Vanderbilt Law Review


Jay S. Bybee

First Page



In July 1788 the North Carolina legislature was considering ratification of the Constitution, a constitution that did not contain a Bill of Rights. As the delegates reached the Religious Test Clause, Henry Abbot remarked:

"Some are afraid... that, should the Constitution be received, they would be deprived of the privilege of worshiping God according to their consciences, which would be taking from them a benefit they enjoy under the present constitution. They wish to know if their religious and civil liberties be secured under this system, or whether the general government may not make laws in- fringing their religious liberties.... Many wish to know what religion shall be established."

James Iredell, Federalist, former North Carolina Attorney General, and future Supreme Court justice, responded that he was "astonished" that anyone should conceive that Congress had "authority to interfere in the establishment of any religion whatsoever."' He went on, "If any future Congress should pass an act concerning the religion of the country, it would be an act which they are not authorized to pass .... Every one would ask, 'Who authorized the government to pass such an act?' It is not warranted by the Constitution, and is barefaced usurpation." Iredell then referred to the Guaranty Clause and asked, rhetorically, "why a guaranty of religious freedom was not included." Iredell answered his own question: "Had Congress undertaken to guaranty religious freedom, or any particular species of it, they would then have had a pretence to interfere in a subject they have nothing to do with. Each state, so far as the [Guaranty Clause] does not interfere, must be left to the operation of its own principles."

In 1993 Congress enacted the Religious Freedom Restoration Act ('RFRA") which provided that government, including the United States and the states, "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" except where the government can demonstrate that the burden furthers "a compelling governmental interest" and is "the least restrictive means of furthering that... interest."